Texas moves to protect voter ID law

Posted Thu, August 8th, 2013 7:01 pm by Lyle Denniston

Repeating its argument that its controversial new photo ID requirement for Texas voters is now in operation, the state on Thursday asked a federal court in Washington to put an end to a case testing that law’s validity. The state filed a two-page motion to dismiss the case. That, however, could encounter resistance from the Obama administration, which believes the law impairs minorities’ voting rights and wants to block Texas from enforcing any such law.

“Senate Bill 14 [the photo ID law] is now in full effect and being implemented in Texas,” according to Texas’s motion, filed in U.S. District Court in the case of Texas v. Holder (District Court docket 12-128). That court ruled a year ago that the law would violate the voting rights of African Americans and Hispanics in Texas under the Voting Rights Act of 1965. The Supreme Court in late June sent that case back to the district court, to reconsider in the wake of the decision in the Voting Rights Act case of Shelby County v. Holder.

Texas’s motion to dismiss the case altogether appeared likely to set up a new courthouse confrontation with the Obama administration, because Justice Department lawyers are pressing federal courts to put all Texas laws governing voting under a new form of federal court supervision, barring enforcement until any such law gets cleared in Washington. Texas is vigorously opposing that effort.

Two days after the Supreme Court decided the Shelby County case, and on the day the Justices told the district court to take a new look at the Texas photo ID law, officials of the state have insisted that there was no longer any legal impediment to enforcement of that requirement, and they began taking steps to implement it across the state.

In the Shelby County decision, the Supreme Court ruled that Texas and other states long required to get clearance in Washington for new election laws and methods — because of past history of racial bias in voting — were at least temporarily free of that obligation. It did so as the Court struck down the coverage formula that determined which jurisdictions would have to submit to so-called “preclearance” in Washington under the Voting Rights Act’s Section 5.

The decision, however, did not disturb the legality of Section 5 itself and the Obama administration, along with lawyers for civil rights and minority voter advocacy groups, are now seeking to put Texas back under Section 5 under an alternative coverage provision in the 1965 law (Section 3). If that were to happen, Texas could not enforce any new voting requirement — including the photo ID law — if such a provision interfered with minority voters’ chance to take full part in elections in the state.

Since the Supreme Court ruling, the Obama administration has filed only one paper in a federal court about Texas’s photo ID law, a simple notice last month to the district court in Washington that the Supreme Court had decided Shelby County. That filing said that the government and Texas would “confer regarding this matter and report back to the court.”

Texas’s motion to dismiss on Thursday was the first follow-up gesture. Although the Justice Department has yet to file its views, it almost certainly does not share the argument that Texas is entirely free to enforce the photo ID law. That would contradict directly the position the government has taken in a district court in San Antonio, involving a Texas legislative redistricting case. There, the Department has argued that Texas should be put back under a Section 5 pre-clearance requirement because its continuing record of discrimination against minority voters justifies the reimposition of that duty, and justifies maintaining it for at least ten more years.

It is unclear, however, whether the Justice Department will take the position that the pending district court case in Washington is a proper place for it to make a new challenge to the photo ID law. That case was filed by Texas itself to get pre-clearance for the photo ID requirement. Conceivably, the Justice Department might move in a different way to go on with its challenge to the ID law, since it no doubt continues to object to the impact that it believes that law has.

In seeking to end its own case, Texas’s new motion said: “Given that Texas is no longer subject to pre-clearance, its pre-clearance declaratory judgment claim in this court is now moot.”

When the state filed that lawsuit seeking the court’s approval for its photo ID law, it also made an argument that, if the law was not cleared under Section 5, then the district court should strike down Section 5. In the dismissal motion, the state contended that, since its photo ID law is now operating, there was “no longer any need for Texas to pursue its constitutional challenge to Section 5.”

Texas is arguing explicitly in the San Antonio redistricting case that the courts cannot put it back under a Section 5 pre-clearance obligation, because the Shelby County decision by the Supreme Court set the bar for such action too high.

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The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

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